M/S Dataplus Info Channel vs Assam Smalll Industries Devl. ...
2021 Latest Caselaw 1656 Gua

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GAHC010174902015




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : CRP/36/2015

            M/S DATAPLUS INFO CHANNEL
            INDUSTRIAL AREA, BAMUNIMAIDAM, GHY-21, HAVING ITS REGD.
            OFFICE AT TARUN NAGAR, BHANGAGARH, P.O. BHANGAGARH, P.S.
            DISPUR, GHY-5, DIST- KAMRUP METRO, ASSAM, REP. BY ITS PROPRIETOR,
            SMT. KANCHAN AGARWAL

            VERSUS

            ASSAM SMALLL INDUSTRIES DEVL. CORPORATION LTD. and 2 ORS
            A GOVT. OF ASSAM, UNDERTAKING, REP. BY ITS MANAGING DIRECTOR,
            HAVING ITS REGD. OFFICE AT INDUSTRIAL AREA, BAMUNIMAIDAM,
            GHY-21

            2:THE MANAGING DIRECTOR
            ASSAM SMALL INDUSTRIES DEVEL. CORPORATION LTD.
             BAMUNIMAIDAM GHY-21
             DIST- KAMRUP METRO
            ASSAM

            3:GAYANANDA DAS
             PROPRIETOR OF ASSAM ENGINEERING PRODUCTS
             S/O LT. KESHABANANDA DAS
             R/O RUKMINIGAON
             H/NO.84 NEAR NEHA APARTMENT
             GHY-22
             DIST- KAMRUP METRO
            ASSA

Advocate for the Petitioner   : MR.G RAHUL

Advocate for the Respondent : MR P K KALITA (R3)


                                        BEFORE
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                    HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                      ORDER

Date : 14-07-2021

Heard Mr. S. Banik, learned counsel for the petitioner and Mr. N. Das, learned counsel for the respondents.

This is an application under Article 227 of the Constitution of India challenging the order dated 01.11.2014 passed by the learned Munsiff No. 2, Kamrup (M) in T.S. No. 285/2011.

The respondent No. 3 herein filed T.S. No. 285/2011 against the present petitioner and the respondent No. 1 and 2. The petitioner entered appearance in response to the summons, but could not file written statement on the ground that the copy of the plaint was not annexed with the summons. Therefore, the petitioner filed an application to that effect and prayed for an order directing the plaintiff of the said suit to serve the complete set of document so that it could file the written statement.

The learned trial court vide order dated 01.11.2014 rejected the application of the petitioner on the ground that the petition was filed beyond the period of limitation.

Here at this stage, Order V Rule 2 of the Code of Civil Procedure may be visited. Rule 2 states that every summon shall be accompanied by a copy of the plaint.

In order to buttress his submission, Mr. Banik, learned counsel for the petitioner has relied upon a decision of this Court in Sreenivas Basudev (Ms) Vs. Vineet Kumar Kothari reported in 2006 (3) GLT 118. Paragraph-18 of the said judgment is quoted below:

"Consequently, therefore, mere service of summons of a Page No.# 3/3

defendant would not make the period of 90 days, as envisaged under Order VIII Rule 1, start running. When a period does not begin to run, the question of the period having come to an end does not arise at all. Hence, when the service of summons is not accompanied by a copy of the plaint, the period of 90 days, as contemplated under Order VIII rule 1, would not begin to run."

There is no doubt that summons upon the petitioner was not served according to the provision as laid down in Order V of the Code of Civil Procedure. So far as the period of 90 days is concerned, law is now well settled. The period of 90 days as mentioned in Order VIII Rule 1 is a directory provision. Here the court is empowered to exercise its discretion.

The impugned order is a cryptic one. Judicial orders are required to be based on sound reasoning. Since notices were not served upon the petitioner in accordance with the provision of law as laid down in Code of Civil Procedure, the question of 90 days does not arise.

This court is of the opinion that the impugned order dated 01.11.2014 is bad in law. Accordingly, the impugned order dated 01.11.2014 passed by the learned Munsiff No. 2, Kamrup (M) in T.S. No. 285/2011 rejecting the petition filed by the present petitioner is set aside. The respondent No.3, who is the plaintiff in the suit below is directed to serve copy of the plaint and other documents to the petitioner and after that the petitioner shall file his written statement.

With the aforesaid observation and direction, the revision petition is disposed of.

JUDGE

Comparing Assistant